Redundancy fears over fixed fees

From a sceptical public and politicians alike the response might be sneering, but across the country evidence is mounting that the genuine fears expressed by the profession about the damaging effects of fixed fees legislation are proving prophetic.

In Lanarkshire, a leading solicitor has claimed fixed fees for legal aid could lead to a generation of young solicitors being lost to the profession.  Meanwhile in the Highlands and islands, the prospect mounts of a crisis in local courts caused by a shortfall of solicitors willing to undertake lengthy round-trips for a fixed remuneration.

Robert Carty, Dean of the Society of Solicitors of Hamilton District, issued his warning after a number of young solicitors in Lanarkshire were made redundant and others were put on notice of impending redundancy.

He said: “Several young solicitors in the Hamilton Sheriff Court area have lost their jobs or have been put on notice.  Others have moved away from criminal court practice and already this year three have joined the Fiscal service.

“I think the solicitors who provide an agency service will soon disappear.  There is no doubt that in the Hamilton area we will see a contracting profession in the field of criminal legal assistance.  This is entirely due to the fixed fees legislation.

“Young solicitors are the most vulnerable and many will be forced to look at other areas of work, often outside of the profession.”

Robert Carty suggests it is small firms who will face the most severe effects of the legislation which came into force on April 1: “Some of the smaller firms with limited resources may have to consider pooling resources and sharing core services.  But this is unlikely to be anything other than a short-term fix.  All the current signs are of a circle of decline.  You simply cannot provide the same service for much reduced fees and expect nothing to change.  “Bigger firms will allocate their resources more rationally.  I think the days of experienced solicitors from larger firms conducting trials for accused persons in district courts are probably over.”

Robert Carty, whose firm has seven offices across Lanarkshire, making it the biggest in the region, said the absence of senior practitioners from district courts will lower the standard of representation at that level and deny young solicitors the opportunity to learn from observing experienced solicitors in action.

He added: “Fixed fees offers no benefit to anyone in implementing a substantial reduction of fees for the same quality of work and same service.  During the consultation exercise substantial submissions were made by the Society and professional bodies such as the Hamilton Society of Solicitors and many concerned individuals.  If the Scottish Office didn’t listen, they certainly heard.”

However, he stopped short of condoning any action being taken in protest against the new regulations: “Hamilton solicitors did take part in what was described as a work to rule in December to demonstrate the practical difficulties which will be faced by the courts when solicitors refuse to appear for clients if they are not to be paid by the Scottish Legal Aid Board, particularly with regard to the duty solicitor roll.

“I appreciate that some individual solicitors may decide to withdraw from certain courts and certain types of cases, but the Hamilton Society will not endorse any concerted action if the result would leave accused persons unrepresented.”

In Glasgow too, President of the Glasgow Bar Association Gerry Brown said he knew of two solicitors who are giving up practising as a direct consequence of the fixed fees legislation: “The issue of job losses was raised during the debate and I had doubts whether this would come to pass.  It’s now likely there will be further job losses and we’ll have to wait and see how long it takes for the effects to filter through.”

As a tutor in criminal court practice at the University of Glasgow, Gerry Brown is clear about the mood of would-be solicitors: “Many students are thinking of going elsewhere, not into law.  They are concerned that changes to the legal aid system means that being a lawyer won’t provide them with a secure future.”

While there is as yet no evidence available in Edinburgh of redundancies directly linked to fixed fees, President of the Edinburgh Bar Association Fergus Christie said there had been a noticeable trend of “downsizing”.

“In the last six months it seems that people leaving as a normal course of events are not being replaced.  It’s hard to judge whether they have jumped ship but redundancies are inevitable, in both qualified and secretarial posts.  It is concerning that in the last two years we have seen only a few trainees coming through, and there is a danger there will be no new blood at all.”  In Inverness action has been taken, all solicitors on the duty roll for Wick Sheriff Court having resigned their services.  Accused persons appearing at Wick will be defended by one firm of local solicitors and a firm from Dornoch, three other Wick firms having withdrawn their services.

Inverness solicitor Gordon Fleetwood said: “It seems the Scottish Office didn’t listen to representations from the Highland faculty.  It is now uneconomic to travel to Wick or outlying district courts.  Inverness firms are having to take the view that it is no longer profitable to accept instructions which require that level of travelling.  A trip to one of the islands can take two or three days and the cost of travel and lost revenue during that time cannot be catered for by fixed-fees for criminal legal aid.”

Wick solicitor Bruce de Wert points out that to visit an accused held in custody will often entail round trips of 100 miles or more, usually by slow single track roads.  He said his firm would operate a three month trial to assess whether the new regime is workable.

If concerns in the Highlands relate more to access to justice for accused, they do share some of Robert Carty’s worries about prospects for young solicitors: “Work here is fairly well spread, so no firms will suffer particularly.  However, one firm in Inverness has opted not to replace a newly qualified trainee and generally in the north there is some reluctance to take on trainees due to lost business,” said Gordon Fleetwood. “Firms here will survive, our primary concern remains the representation in courts for accused in places like Caithness and the islands.”

Nevertheless it might be fair to assume that island solicitors in particular would welcome the absence of any competition in attracting criminal clients.  President of the Society of Solicitors in Orkney, Alistair Bruce, agrees that while this view holds some weight, there are wider concerns: “Situations are bound to arise where local solicitors cannot act for a client, either due to a conflict of interest in perhaps a matrimonial assault or where there are more than one accused.  There are only two firms and five solicitors engaged in criminal work in Orkney and it’s now difficult to see solicitors coming up from Inverness or Aberdeen.

“The fixed fee nowhere near compensates for the additional travelling time, solicitors from the mainland would be required to write off a day and a half and take account of the court being cancelled in situations where planes can’t get in.  I can’t see anyone taking this on unless they are pretty desperate.  “Submissions were made by us and our MP Jim Wallace, but it seems only lip service was paid to them.  The extra £50 to cover costs of travel to nine peripheral courts might be of assistance in travel to some of the outlying courts in the mainland, but it doesn’t begin to pay for expenses involved in coming here.”  As firms adjust to the new provisions it may be that the delivery of criminal representation through the legal aid system will evolve into something compatible with the well-being of the profession and continued access to justice for accused.  At the moment, however, that hope seems unlikely.